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The County Recorder shall administer this ordinance. On or before the fifteenth day of the month the Recorder shall report to the County Auditor the amounts of taxes collected during the preceding month pursuant to this ordinance.
(Ord. 315-67, App. 12/12/67; amended by Ord. 352-84, App. 8/8/84; Ord. 377-84, App. 8/31/84)
(a) The County Recorder shall collect the tax hereby imposed and deposit the same to the General Fund. The County Recorder shall not record any deed, instrument or writing subject to the tax imposed by this Article 12-C unless the tax is paid.
(b) A declaration of the amount of the tax due, signed by the party determining the tax or his or her agent, shall appear on the face of every document subject to tax hereunder which is submitted for recordation. The declaration shall include a statement that the consideration or value on which the tax due was computed was not exclusive of the value of liens or encumbrances remaining on the interest or property conveyed at the time of sale.
(c) With every document subject to tax hereunder which is submitted for recordation, there shall also be submitted a separate affidavit stating all relevant information that is necessary for the determination of the proper transfer tax. A form for such affidavit shall be prepared by the County Recorder. The affidavit form shall include the following notice: “NOTICE: Any material misrepresentation of fact in this affidavit is a misdemeanor under Section 1116 of the Real Property Transfer Tax Ordinance. Any person who makes such a misrepresentation is subject to prosecution for such offense.”
(d) If the deed, instrument or writing by which any lands, tenements, or other realty sold within the City and County of San Francisco is granted, assigned, transferred, or otherwise conveyed is not recorded with the County Recorder’s Office, the person who makes, signs, or issues such document or for whose benefit such document was made, signed, or issued, shall submit to the County Recorder an affidavit stating all relevant information that is necessary for the determination of the proper transfer tax, on the form described in Section 1111(c). Such affidavit must be filed within 30 days from the date the document effecting the transfer is delivered. Such affidavit must be filed regardless of whether any transfer tax is due or paid. Filing an affidavit that the County Recorder determines to be incomplete in any material aspect may be deemed to be a failure to file this affidavit for purposes of the statute of limitations in Section 1115.
(e) In accepting a document for recordation, the County Recorder may rely upon the declaration of the amount of tax due and upon the affidavit of relevant information accompanying the document if the County Recorder has no reason to believe that the full amount of the tax due has not been paid.
(f) Every document subject to tax hereunder which is submitted for recordation shall show on the face of the document, or in a separate document, the location of the lands, tenements, or other realty described in the document.
(a) Every person liable for the tax imposed by this Article 12-C shall keep and preserve records as may be necessary to determine the amount of tax for which the person may be liable, or whether the person is exempt from the tax. Upon request of the County Recorder, a person liable for the tax imposed by this Article 12-C shall produce such records to the County Recorder. Additionally, the County Recorder may order any person or persons, whether liable for the tax imposed by this Article 12-C or not, to furnish affidavits and produce all books, papers, documents, or any other records that the County Recorder believes may have relevance to enforcing compliance with this Article 12-C.
(b) The County Recorder may order the attendance before the County Recorder of any per- son or persons, whether liable for the tax imposed by this Article 12-C or not, whom the County Recorder believes may have information relevant to enforcing compliance with this Article 12-C.
(c) If the taxpayer does not maintain records that are adequate to determine liability under this Article 12-C, or following a request by the County Recorder fails to produce such records in a timely fashion, the County Recorder may determine the person’s liability based upon any information in the County Recorder’s possession, or that may come into the County Recorder’s possession. Such determination shall be prima facie evidence of the person’s liability in any subsequent administrative or judicial proceeding.
(d) The County Recorder may issue and serve subpoenas to carry out these provisions, and may adopt and implement necessary and appropriate audit procedures.
(Added by Ord. 176-17, File No. 170703, App. 7/27/2017, Eff. 8/26/2017)
(Former Sec. 1111.1 added by Ord. 377-84, App. 8/31/84; repealed by Ord. 176-17, File No. 170703, App. 7/27/2017, Eff. 8/26/2017)
(a) Except as otherwise provided in subsection (d) of this Section 1113 or as provided in Section 1113.1, the Controller shall refund or cause to be refunded the amount of any tax, interest, or penalty imposed under this Article 12-C that has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City, provided the person that paid such amount files a claim in writing with the Controller within the later of one year of payment of such amount or the date the tax was due. The claim must state: (1) the specific amount claimed to have been overpaid or paid more than once, or erroneously or illegally collected or received by the City; (2) the date of transfer; and (3) the grounds upon which the claim is founded, with specificity sufficient to enable the responsible City officials to understand and evaluate the claim.
(b) Claims for refund shall be made according to California Government Code, Title 1, Division 3.6, Part 3. The Controller shall furnish a form to be used for these claims. The Controller shall enter the claim in the register, and shall forthwith forward it to the City Attorney. The City Attorney is designated to take such actions on claims as authorized by California Government Code, Title 1, Division 3.6, Part 3, Chapter 2, except that the City Attorney's authority with regard to rejecting or allowing claims shall be as provided in this Section 1113. The City Attorney may reject the claim, and shall notify the claimant of such rejection. Except as provided in subsection (c), allowance or compromise and settlement of claims under this Section 1113 in excess of $25,000 shall require the written approval of the City Attorney and approval of the Board of Supervisors by resolution. The City Attorney may allow or compromise and settle such claims if the amount is $25,000 or less. No claim may be paid until the Controller certifies that monies are available from the proper funds or appropriations to pay the claim as allowed or as compromised and settled. If the City approves the claim, the City may refund the excess amount collected or paid, or may credit such amount toward any amount due and payable to the City from the person from whom it was collected or by whom it was paid, and the balance may be refunded to such person, or the person's administrator or executor. For purposes of this Section 1113, a claim shall be deemed to accrue on the later of the date the tax was due or the date the tax was paid.
(c) Notwithstanding the $25,000 limitation on the City Attorney’s authority in subsection (b) of this Section 1113, the City Attorney, with the approval of the County Recorder but without the approval of the Board of Supervisors, may allow or compromise and settle claims under this Section 1113, and suits for refund following the denial of claims under this Section 1113, for any amount up to the amount of transfer tax, penalties, and interest paid that exceeds the amount of transfer tax, penalties, and interest that would have been due on a transaction if the amount of transfer tax, penalties, and interest due had been calculated using the value of the real property on the date of the transaction as finally determined by the Assessment Appeals Board of the City and County of San Francisco plus statutory interest under Section 1113.2.
(d) The City Attorney, in the City Attorney’s discretion and upon good cause shown, prior to the expiration of the one-year limitations period, may waive the requirement set forth in subsection (a) of this Section 1113 that a taxpayer file a written claim for a refund in any case in which the County Recorder and City Attorney determine on the basis of the evidence that:
(1) an amount of tax, interest, or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City; and
(2) all other conditions precedent to the payment of a refund to the taxpayer have been satisfied.
The County Recorder may authorize the Controller to refund transfer tax payments, without the need for a refund claim, if the County Recorder determines:
(a) the tax was paid more than once;
(b) the amount paid exceeds the amount due as a result of an arithmetic or clerical error; or
(c) the tax was paid on a type of transaction that is exempt from the tax.
The County Recorder may authorize such a refund no later than one year after payment of the tax. The statute of limitations for filing a claim for refund under Section 1113(a) shall not be tolled and shall continue to run while a person’s request for refund under this Section 1113.1 is pending.
(Added by Ord. 20-09, File No. 081450, App. 2/5/2009; amended by Ord. 176-17, File No. 170703, App. 7/27/2017, Eff. 8/26/2017)
(a) Any amounts refunded prior to entry of a final judgment in a judicial proceeding shall bear interest at the rate for prejudgment interest on refunds of local taxes or fees provided by section 3287(c) of the California Civil Code, as amended from time to time, and shall be computed from the date of payment to the date of refund.
(b) If the Controller offsets overpayments for a particular transfer against another liability or liabilities owed to the City, or against penalties or interest on the other liability or liabilities owed to the City, the taxpayer will be credited with interest on the amount so applied at the rate of interest set forth above, computed from the date of payment.
(c) If a taxpayer elects to apply all or part of a refund, inclusive of any interest accrued up to the date of the taxpayer's election, against a future San Francisco tax liability, the taxpayer will not be credited with interest on the amount so applied from the date of the taxpayer's election.
(a) Persons claiming they are aggrieved under the Business and Tax Regulations Code must prior to seeking judicial relief:
(1) pay the amount of the disputed tax, penalty, and interest; and
(2) present a claim for refund to the Controller and allow action to be taken on such claim, pursuant to Section 1113.
(b) The person who paid the tax, his or her guardian or conservator, the executor of his or her will, or the administrator of his or her estate may bring an action in Superior Court against the City and County of San Francisco to recover taxes, interest, or penalties that the City has refused to refund on a claim for refund pursuant to Section 1113. No other person may bring such an action; but if another person should do so, judgment shall not be rendered for the plaintiff. Any suit for refund of taxes, interest, or penalties shall be commenced within the time provided by California Government Code section 945.6, as amended from time to time. Persons claiming they are aggrieved under the Business and Tax Regulations Code may not file any type of judicial action other than a refund action. Notwithstanding any other section of this Code, no claim or defense that, for any reason, a tax is not due or cannot be applied under this Code may be raised in any judicial proceeding except in an action for refund of the disputed tax.
(a) In the administration of this ordinance the recorder shall interpret its provisions consistently with those Documentary Stamp Tax Regulations adopted by the Internal Revenue Service of the United States Treasury Department which relate to the Tax on Conveyances and are identified as Sections 47.4361-1, 47.4361-2 and 47.4362-1 of Part 47 of Title 26 of the Code of Federal Regulations, as the same existed on November 8, 1967, except that for the purposes of this ordinance, the determination of what constitutes “realty” shall be determined by the definition or scope of that term under state law.
(b) Notwithstanding subsection (a), “realty sold” includes any acquisition or transfer of ownership interests in a legal entity that would be a change of ownership of real property under California Revenue and Taxation Code Section 64. In such cases, there shall be deemed to have been an instrument executed whereby there was conveyed, for fair market value, all real property that experienced a change of ownership under California Revenue and Taxation Code Section 64.
(Ord. 315-67, App. 12/12/67; amended by Ord. 377-84, App. 8/31/84; Proposition N, 4, 11/4/2008; Proposition W, 11/8/2016)
(a) Deficiency Determinations. Whenever the County Recorder has reason to believe that a person has failed to pay or has underpaid the tax imposed by this Article 12-C, the County Recorder may compute and determine any tax, penalty, or interest deficiency upon the basis of any information within the County Recorder’s possession or that may come into the County Recorder’s possession. The County Recorder may make one or more deficiency determinations for the same deed, instrument or writing by which any lands, tenements, or other realty sold within the City and County of San Francisco is granted, assigned, transferred, or otherwise conveyed.
(b) Deficiency Determinations; Notice. Upon making a determination pursuant to this Section 1115, the County Recorder shall record the notice of deficiency determination, and shall give to the person or persons liable for the tax, and to the owner or owners of the real property described in the notice, as said owners are shown on the records of the County Assessor, written notice of the County Recorder’s determination. Except in the case of fraud, intent to evade the tax imposed by this Article 12-C
, or the failure to either record the deed, instrument or writing effecting a transfer subject to the tax or file the affidavit required under Section 1111(d), in which case there is no statute of limitations, and unless the person liable for the tax has agreed in writing to extend the period for service of a notice of deficiency determination prior to such period expiring, every notice of a deficiency determination shall be served, in the manner provided by Section 1115.3, within three years after the later of:
(1) The date the tax became delinquent;
(2) The date the person liable for the tax recorded the deed, instrument or writing effecting a transfer subject to the tax with the County Recorder’s Office, if such document was recorded; or
(3) The date the person liable for the tax furnished to the County Recorder the affidavit required under Section 1111(d), if the deed, instrument or writing effecting a transfer subject to the tax was not recorded with the County Recorder’s Office.
(c) Deficiency Determinations; Content. The County Recorder’s notice of deficiency determination shall include the following information:
(1) The amount of delinquent tax;
(2) The interest that has accrued and shall continue to accrue on the delinquent tax;
(3) The delinquency penalty then due;
(4) The additional penalty that shall accrue if the tax is not paid by the date the deficiency determination is due and payable;
(5) A description of the lands, property, or other realty sold that was transferred without full payment of tax; and
(6) A notice that if the tax, penalties, and interest are not paid within 30 days after service of the notice of deficiency determination upon the person liable for the tax, the County Recorder may commence collection actions for the tax, including, but not limited to, the lien proceedings under Section 1115.1.
(d) Deficiency Determinations; Due and Payable. The County Recorder’s deficiency determination shall be due and payable 30 days after service of the notice of deficiency determination upon the person liable for the tax.
(e) Jeopardy Determinations.
(1) Duty of County Recorder. If the County Recorder believes that the collection of any tax imposed by this Article 12-C will be jeopardized, in whole or in part, by delay, the County Recorder shall serve notice upon the person determined to be liable therefor of his or her determination of jeopardy and of the tax required to be paid to the City, and demanding immediate payment thereof, together with any interest and penalty determined to be due. The County Recorder may consider all facts and circumstances relevant to determining whether the collection of any tax will be jeopardized by delay, including but not limited to indications that the person liable for the tax intends or is taking action to discontinue business activities in the City, dissipate or otherwise remove assets from the City, or sell, exchange, assign, or otherwise dispose of personal or business income or property. The County Recorder also may consider whether the person liable for the tax is insolvent or likely to become insolvent after the taxes at issue are assessed or collected; and whether the person liable for the tax is or has been uncooperative or unresponsive in connection with any investigation, examination, audit, deficiency determination, assessment, or collection action or procedure undertaken by the County Recorder or Tax Collector.
(2) When Due and Payable. A jeopardy determination of tax, interest, or penalty is immediately due and payable upon the service of the notice of jeopardy determination on the person determined to be liable therefor. Prior to service of such notice, the County Recorder or Tax Collector may, notwithstanding the provisions of Section 1115.4, record a lien in the amount due as set forth in the notice of jeopardy determination. Immediately upon service of such notice, the Tax Collector may, notwithstanding the provisions of Section 1115.4, commence lien proceedings under Section 1115.1, seek summary judgment pursuant to Section 1115.5, and/or may commence a collection action in any court having jurisdiction over the matter.
(3) Service of Notice. Service of notice of a jeopardy determination shall be provided in the manner set forth in Section 1115.3.
(4) Effect of Non-Payment. If the amount specified in the jeopardy determination is not paid within 15 days after service of notice thereof upon the person against whom the determination is made, the additional 10% penalty provided in 1115.2(a)(1) shall attach to the tax or the amount of the tax required to be collected, regardless of the number of days that have passed since the date of the original delinquency.
(f) Effect of County Recorder’s Determination. The County Recorder’s issuance of a notice of deficiency determination or a notice of jeopardy determination with respect to any document or transaction, or the County Recorder’s failure to issue such a notice, may not be treated as precedent for the treatment of any future document or transaction. The County Recorder’s issuance of a deficiency determination or a jeopardy determination to a person for a document or transaction shall not bar the County Recorder from making further determinations regarding the liability of the person for that document or transaction.
(a) Initiating Lien Proceedings. If the full amount of the delinquent tax, penalties, and interest is not paid within 30 days after service of the notice of deficiency determination, the County Recorder, within one year of the deficiency determination becoming due and payable, may report the delinquency to the Board of Supervisors (“the Board”) and request the Board to initiate proceedings to impose a lien for the total unpaid balance against the real property that was transferred by the document delivered without full payment of tax. Said report shall, for each delinquent account, contain the names of the persons liable for the tax, the total amount due, including delinquent taxes, penalties, and interest, a description of the lands, tenements, or other realty sold that was transferred by the document delivered without full payment of tax, and the date on which the County Recorder served its notice of deficiency determination. Upon receipt of such report the Board shall fix a time and place for hearing the report and any protests or objections thereto and shall cause notice of the hearing to be mailed not less than 10 days prior to the date of hearing to each person liable for the tax and to the owner or owners of the real property described in the recorded notice of deficiency determination.
(b) Hearing. At the time so fixed, the Board shall meet to hear the report and any protests or objections thereto. The Board may make such revisions, corrections, or modifications of the report as it may deem just; and in the event that the Board is satisfied with the correctness of the report (as submitted or as revised, corrected, or modified), it shall be confirmed. The decision of the Board on the report and on all protests or objections thereto shall be final and conclusive; provided, however, any delinquent account may be removed from the report by payment in full at any time prior to confirmation of the report. The Clerk of the Board shall cause the confirmed report to be verified in a form sufficient to meet recording requirements.
(c) Special Assessment Lien. Upon confirmation of the report by the Board, the unpaid balance reported therein, including tax, penalties, and interest, shall constitute a special assessment against the real property that was transferred by the document delivered without full payment of tax; provided, however, that the special assessment, and the lien created thereby, shall attach only to interests in the property that were held, on the date the notice of deficiency determination was recorded, by persons liable for the tax. Each such assessment shall be subordinate to all existing special assessment liens previously imposed upon such parcels and paramount to all other liens except those for State, County, and municipal taxes with which it shall be in parity. The lien shall continue until the assessment and all interest and penalties due and payable thereon are paid. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to said special assessment. The Clerk of the Board shall give notice of the confirmation of the report to each person liable for the tax and to the owner or owners of the real property described in the recorded notice of deficiency determination and shall cause the confirmed and verified report to be recorded in the County Recorder’s office and the special assessment lien on each parcel of property described in the report shall thereupon secure an additional charge for administrative expenses of $50 or 10% of the unpaid balance, whichever is higher. An action to set aside the special assessment and the lien created thereby shall be commenced within one year from and after the date that notice of the confirmation of the report was given to the persons liable for the tax and to the property owners.
(d) Filing with Controller and Tax Col- lector. The Clerk of the Board shall file a certified copy of each confirmed report with the Controller and Tax Collector within 10 days after confirma- tion of the report, whereupon it shall be the duty of said officers to add the amount of each special assessment to the next regular bill for taxes levied for municipal purposes against the respective par- cels of property described in the confirmed report.
(e) Payment of Special Assessment. On payment to the Tax Collector of the special assessment, including delinquent taxes, accrued penalties, interest, and the administrative expense charge authorized by Section 1115.1(c) above, the Tax Collector shall cause a Release of Lien to be recorded with the County Recorder and shall pay the statutory recording fee from the administrative expense charge. Except for the fee paid to record the Release of Lien, all sums collected by the Tax Collector pursuant to this Article 12-C shall be deposited to the General Fund.
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